R. v. Ghozerash Date:, 2012 BCPC 121

Citation: R. v. Ghozerash Date: 20120306 2012 BCPC 0121 File No: 82200 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. AZAD YOUSEFI GHOZERASH ORAL RULING ON APPLICATION FOR JUDICIAL STAY OF THE HONOURABLE JUDGE DE COUTO Counsel for the Crown: B. Girn Counsel for the Accused: J. Cheevers Place of Hearing: Port Coquitlam , B.C. Date of Hearing: March 5, 2012 Date of Judgment: March 6, 2012 [ 1 ] THE COURT : This is my decision this morning on an application that was argued yesterday by the defence for a judicial

[1] THE COURT: This is my decision this morning on an application that was argued yesterday by the defence for a judicialstay of proceedings under s. 24(1) of the Charter on the basis that his client's right under s. 11(

b) to be tried within a reasonable time hasbeen breached in the current circumstances. [2] I might say at the outset that this is the second delay argument that has been brought forward by the accused through hiscounsel, the first having been made on the very first day of the trial of this matter which commenced on October 25th of last year. I willrefer to that again later in my decision. [3] Secondly, my decision is not going to be as otherwise articulate as it could have been had I had the time and the opportunityto carefully review the matter and put it down to writing.

I have a brief outline from upon which I am going to base my decision thismorning. [4] As just mentioned, this is an application by the defence for a judicial stay of proceedings. It seems to me that the startingpoint is the consideration of the applicable law. The leading case with respect to that is set out in R. v. Morin, a decision of our SupremeCourt of Canada, reported at (SCC), [1992] 1 S.C.R. 771, which analyzes the issue, sets out the principles that are to beapplied, and the framework within which the principles are to be considered.

In fact, numerous cases since have referred to it as theleading if not the seminal case on this issue. [5] There was also reference by Mr. Cheevers, counsel for the accused, to a recent decision of my brother Judge Steinberg datedJanuary 25th of this year in R. v. Blattler reported at 2012 BCPC 35 , 2012 BCPC 0035, which I will also refer to shortly. [6] Referring firstly to the Morin (decision), supra, which sets out the leading basis of the principles and the application of thoseprinciples, I quote from Mr. Justice Sopinka who wrote for the majority.

In fact, he opens his reasons with the following commentarywhich I think is so very true from the time he wrote it and continues through yesterday when I heard this argument: [6] The issue in this appeal concerns the right of an accused to be tried within a reasonable time. This right is enshrined in s. 11(

b) ofthe Canadian Charter of Rights and Freedoms which states: 11. Any person charged with an offence has the right... * * * (

b) to be tried within a reasonable time; …. [7] He then continues with these words: [7] Though beguiling in its simplicity, this language has presented the Court with one of its most difficult challenges in search of aninterpretation that respects the right of the individual in an era in which the administration of justice is faced both with dwindlingresources and a burgeoning case load. [8] In that case, there was a 14-and-a-half month delay from the time the Information was sworn to trial and involved animpaired and "Over .08" driving charge.

An application had been made at trial for a judicial stay based on unreasonable delay. Mr.Justice Sopinka, writing for the majority and after going through an analysis of what that

section entailed and required, concluded thatthe delay was not unreasonable in the circumstances. [9] With respect to the analysis of that section, Mr. Justice Sopinka laid out the purpose of s. 11(

b) which he stated in thefollowing way: [27] The individual rights which the

section seeks to protect are: (1) the right to security of the person, (2) the right to liberty, and (3)the right to a fair trial. [28] The right to security of the person is protected in s. 11(

b) by seeking to minimize the anxiety, concern and stigma of exposure tocriminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result frompre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings takeplace while evidence is available and fresh. [10] Balanced against that, he wrote, is the societal interest which he said "is by its very nature adverse to the interests of theaccused".

He referred to it as a collective interest in ensuring that those who transgress the law are brought to trial and dealt withaccording to the law. As the seriousness of the offence increases, so does the societal demand that the accused be brought to trial. [11] In this case, with respect to the charges the accused faces, as I have found in my earlier decision I am satisfied that on thenature of the charges they are very, very serious indeed. It is that of importing and possession for the purpose of trafficking a controlledsubstance: opium.

The total amount, as has been referred to previously, is five kilograms. [12] After describing the purpose of that particular section, Mr. Justice Sopinka then went on to define the principles that ought tobe considered and the manner in which they ought to be considered, that is, he provided a framework for their consideration and hewrote: [31] The general approach to a determination as to whether the right has been denied is not by the application of a mathematical oradministrative formula but rather by a judicial determination balancing the interests which the

section is designed to protect againstfactors which either inevitably lead to delay or are otherwise the cause of delay. … The question is: at what point does the delaybecome unreasonable?" [13] He then listed the following factors to be considered in analyzing how long is too long:

1. The length of the delay; 2. Waiver of time periods; 3. The reasons for the delay, including (

a) Inherent time requirements of the case, (

b) Actions of the accused, (

c) Actions of the Crown, (

d) Limits on institutional resources, and (

e) Other reasons for delay; and 4. Prejudice to the accused. [ 14 ] He continued with the following: [32] The judicial process referred to as "balancing" requires an examination of the length of the delay and its evaluation in light of the other factors. A judicial determination is then made as to whether the period of delay is unreasonable. In coming to this conclusion, account must be taken of the interests which s. 11 (

b) is designed to protect. Leaving aside the question of delay on appeal, the period to be scrutinized is the time elapsed from the date of the charge to the end of the trial. … The length of this period may be shortened by subtracting periods of delay that have been waived. It must then be determined whether this period is unreasonable having regard to the interests s. 11 (

b) seeks to protect, the explanation for the delay and the prejudice to the accused. [ 15 ] With respect to the first, the length of the delay, he stated that it requires a court to examine the period from the charge to the end of the trial. [ 16 ] With respect to waiver of time periods, he stated that the waiver by an accused of his or her rights under s. 11 (

b) must be clear and unequivocal with full knowledge of the rights the procedure was enacted to protect and of the effect that waiver will have on those rights. [ 17 ] With respect to the third factor, the reasons for delay, he acknowledged that some delay is inevitable, that there will be time taken up in processing the charge, retention of counsel and the like, and concluded that there are certainly inherent time requirements which inevitably lead to delay. The complexity of the trial is one requirement that has to be considered.

Justice Sopinka stated: All other factors being equal, the more complicated a case, the longer it will take counsel to prepare for trial and for the trial to be conducted once it begins. [ 18 ] The inherent requirement of such cases will serve to excuse longer periods of delay than for cases which are less complex. [ 19 ] Justice Sopinka also referred to inherent requirements common to all cases which he described as intake requirements which exist for each and every case and should be considered as being reasonable. [ 20 ] He then went on to consider the various other factors, that is, the actions of the accused, actions of the Crown, and limits on institutional resources which he went on to describe. [ 21 ] He said that institutional delay is the most common source of delay and the most difficult to reconcile with the dictates of s. 11(

b) of the Charter . He said this is the period that starts to run when the parties are ready for trial but the system cannot accommodate them. He said that we live in a country with a rapidly growing population in many regions and in which resources are limited. In applying s. 11 (b), account must be taken of this fact of life. He then continued: [48] How are we to reconcile the demand that trials are to be held within a reasonable time in the imperfect world of scarce resources? While account must be taken of the fact that the state does not have unlimited funds and other government programs compete for the available resources, this consideration cannot be used to render s. 11 (

b) meaningless. The Court cannot simply accede to the government's allocation of resources and tailor the period of permissible delay accordingly. [ 22 ] It seems to me that that was in fact one of the considerations advanced by the Crown when the Crown indicated that setting and obtaining five consecutive days for trial of this matter in a busy Provincial Court such as this is difficult because of the volume of work that the Court has. She thus argued it is not unusual to have it set a year ahead or the like.

While that is true, it seems to me that tends to fall into the idea that because we do not have those resources, that kind of a delay is acceptable when setting a lengthy trial. It seems to me that Mr. Justice Sopinka in Morin , supra, in this particular paragraph speaks of the care and attention that ought to be paid to those kinds of approaches and not to simply accept delay for the sake of delay as a result of limited resources. [ 23 ] Mr.

Justice Sopinka continues in para. 48: The weight to be given to resource limitations must be assessed in light of the fact that the government has a constitutional obligation to commit sufficient resources to prevent unreasonable delay which distinguishes this obligation from many others that compete for funds with the administration of justice. There is a point in time at which the Court will no longer tolerate delay based on the plea of inadequate resources. This period of time may be referred to as an administrative guideline.

I hasten to add that this guideline is neither a limitation period nor a fixed ceiling on delay. [ 24 ] With respect to the other factors for consideration, he stated also:

[53] … If an accused is in custody or, while not in custody, subject to restrictive bail terms or conditions or otherwise experiencessubstantial prejudice, the period of acceptable institutional delay may be shortened to reflect the court's concern. On the other hand, in acase in which there is no prejudice or prejudice is slight, the guideline may be applied to reflect this fact. [25] He then concluded with the following words under that heading: [55] Based on the foregoing, it is appropriate for this Court to suggest a period of institutional delay of between 8 to 10 months as aguide to Provincial Courts.

And he referred to that as the outside limits as the norm.

He said: [56] A longer period of institutional delay for Provincial Courts is justified on the basis that not only do these courts dispose of thevast majority of cases, but that on average it takes more time to dispose of cases by reason of the demands placed on these courts. [26] So inherent in the reasoning and analysis is the recognition that Provincial Courts are in fact a very busy court with a largeworkload. [27] With respect to the fourth factor, prejudice to the accused, Justice Sopinka found that prejudice can be inferred fromprolonged delay and that the longer the delay, the more likely that such an inference will be drawn.

In addition to such, he also statedthat either party may rely on evidence to either show prejudice or dispel such a finding. [28] By way of an example he indicated that an accused may rely on evidence tending to show prejudice to his or her libertyinterests as a result of, amongst other things, restrictive bail conditions.

Prejudice to the accused's security interests can also be shown byevidence of the ongoing stress or damage to reputation as a result of overlong exposure to the vexations and vicissitudes of impendingcriminal accusation. [29] The fact that the accused sought an early trial date will also be relevant. Evidence may also be adduced to show the delay hasprejudiced the accused's ability to make full answer and defence. [30] As I said, that was the framework within which the listed principles should be considered.

It seems to me the cases sinceMorin have applied these principles to the particular fact patterns present in each of those cases.

I note from reading the Blattler(decision), supra, and the cases referred to therein that in fact that is exactly the case, e.g., the application and the framework set out inMorin, supra, to the facts that exist in each case. [31] As I have indicated, there was reference made to the Blattler (decision), supra, which dealt with a charge that the accused bymeans of a computer system within the meaning of s. 342.12 of the Criminal Code communicated with a person who was or who theaccused believed was under the age of 16 for the purpose of facilitating the commission of an offence under s. 152. [32] In that case, Judge Steinberg concluded that there was an unreasonable delay.

He found that there was approximately 27months from the start of that matter, that is, the swearing of the Information, to trial. On that basis he found that the accused hadsuffered both "inferred and actual prejudice of a real and significant nature to the accused" arising from lack of judicial resources whichresulted in the trial not being proceeded with in a timely manner. [33] There is reference in that case, as I indicated, to a number of other decisions. Amongst those was a reference to the case of R.v.

Kaiser and Kaiser, 2011 BCPC 168 directly or indirectly and I say that because I have reviewed the cases referred to in that decisionwhich referred to other cases. [34] In that decision, a decision of Associate Chief Judge Brecknell handed down in Prince George on July 14th, 2011, hereviewed at great length those quotes that I just gave from Mr. Justice Sopinka in Morin, supra. He also referred to R. v.

Adair, 2008ONCJ 554 which dealt with a 14-month delay on an impaired "Over .08" charge in which the Court stated the following in para. 12: [12] The crown is charged with the responsibility to bring an accused person to trial in a timely manner. Accordingly, the accusedperson has no obligation to move the case along expeditiously although he or she may not deliberately or make a calculated attempt todelay the process. [35] He then referred to another case, R. v.

Oliveira, a decision of the Ontario Superior Court on an impairedand "Over .08" charge where there was a delay of 16 months in which the Court found that the accused had suffered actual prejudice of afinancial nature due to his counsel having to prepare for additional days of trial when the trial was adjourned. [36] Judge Brecknell in para. 79 of his decision also referred to the Supreme Court of Canada decision in R. v. Godin, 2009 SCC26 in which there was a 30-month delay on a charge of sexual assault.

He quoted in part from para. 23 of that decision: [79] In Godin, the court at paragraph 23 said: [23] (part) ... Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(

b) purposes, requiredefence counsel to hold themselves in a state of perpetual availability .... Further, the court found that rescheduling of a trial does not stop the delay clock. [37] Judge Brecknell went further in para. 99 and referred to another decision of the Supreme Court of Canada in R. v. Conway, (SCC), [1989] 1 S.C.R. 1659 and quoted from p. 1674 when that Court stated as follows: On deciding a claim under s. 11(

b) of the Charter the correct approach is, in my view, to evaluate the reasonableness of the overall lapseof time. A piecemeal analysis is generally not appropriate. In a case where each individual period, taken in isolation from the others, mayconstitute a reasonable delay, the total period may nevertheless be unreasonable for the purposes of s. 11(b) …. However, nothing

prevents a court from focusing on specific time periods which may be significant in the overall assessment, as going to the weight to give to specific delays as opposed to their reasonableness. [ 38 ] Lastly, with respect to delay and lack of judicial resources, much has been made recently in numerous decisions from my brother and sister judges in this Court as to the concern over lack of resources. That is also referred to in the Kaiser , (decision) supra .

I do not intend to go into much detail except to refer to it in the following way. [ 39 ] There was reference as I said to concerns arising out of a decreased number of judges in the immediate past from back in 2005. As a result the Court has taken steps to address the competing priorities of the various divisions in which the Court sits in attempting to ensure that, with the limited resources available, the best service in the most efficient way was provided to all the various divisions.

In regard to that Associate Chief Judge Brecknell in para. 136 of Kaiser , supra, stated: [136] On August 3, 2010, in further response to the continued reduction in judicial resources as described in the Justice Delayed Report , the Court released a Practice Directive with regard to scheduling issues. It says in part: It is recognized that our diminishing pool of judicial resources is being increasingly applied to address criminal backlogs in a manner that is now becoming disproportionate to meeting reasonable civil, family, CFCSA needs in some locations.

Consequently, and to the degree this problem could be occurring at any given location, in each district, under the direction of the Administrative Judge, appropriate time must be returned to the non-criminal case loads when drafting future rotas. [ 40 ] At para. 137, he continued: [137] This Directive will further constrict the time available for scheduling out of custody criminal trials such as this case. [ 41 ] That, it seems to me, is the situation here in terms of scheduling or rescheduling of this trial. This is an out of custody case.

While notwithstanding that it is a very serious charge where upon conviction it may well be that the accused may be facing a lengthy period of incarceration, the Directive provides that it is not to take precedence over the other matters and that time must be returned from criminal cases to non-criminal caseloads. [ 42 ] In my view, it is appropriate to consider those factors that I have just referred to from the Kaiser (decision) , supra , coupled with the factors and principles and the framework set out by Mr.

Justice Sopinka in Morin , supra , in determining whether in the circumstances of this case at this point in time, that is, after the trial has commenced and much of the trial evidence has been led, whether or not there has been unreasonable delay on the totality of the time and the circumstances that have taken place to date. [ 43 ] In doing so, I think it is appropriate to start with a consideration of the timeline in this case which I have obtained from a review of the notice filed by counsel for the accused with respect to this application under the Constitutional Questions Act . [ 44 ] The offence date -- there are two counts as I indicated -- is between the timeframe of August 24th, 2009 and September 5th, 2009.

The accused was arrested on September 5th, 2009 and the original Information was sworn that same day. [ 45 ] The accused appeared by telephone before a judicial justice of the peace and the matter was adjourned over to an appearance before a Provincial Court judge on September 8th, 2009. At that appearance, it was adjourned to the following day, September 9th, to enable the accused to obtain counsel. [ 46 ] On September 9th, the accused appeared before a judge with counsel and obtained his release on bail with conditions.

The matter than proceeded through various appearances and adjournments from time to time and on January 12th, 2010, the first trial date was set for five days commencing December 6th, 2010 and for the consecutive days following. [ 47 ] The matter was confirmed as late as November 17th, 2010 for the matter to proceed on the scheduled date of December 6th. However, on December 1st, 2010, the Crown applied for an adjournment due to the hospitalization of one of their police witnesses, Constable Robert Anzulovich.

It was anticipated that he would require surgery and approximately four months would be required for his convalescence. [ 48 ] The application for the adjournment was opposed by the accused through his counsel. Notwithstanding that it was opposed, the adjournment was granted and a new trial date was set for some ten months later for a period of five days commencing October 24th, 2011 as this was the earliest time available for the Court to allow for five consecutive days for trial. [ 49 ] The matter commenced before me on October 24th and on that first day, as I had indicated, Mr.

Cheevers on behalf of his client brought on a delay argument that took up a good portion of that day.

The matter was adjourned to the following day for decision and I had concluded that the delay at that time was not unreasonable. [ 50 ] As I mentioned at the beginning of my decision today, that conclusion was based on the Court not having heard any of the evidence, not fully appreciative of what the case actually involved, and was decided on the basis that the charges on the face of it were not of a kind that normally are before these Courts, and based on submissions from the Crown that there was a complexity to it that was otherwise different from the cases that we normally hear. [ 51 ] I had also concluded that the four-month convalescence required by the officer, without knowing what his evidence was going to be, was reasonable in the circumstances because it was beyond the control of both counsel and of everybody in the circumstances. [ 52 ] As I said, the trial started on October 24th, 2011 and proceeded over the course of the following five days, with a voir dire declared on the very first full day of the hearing of the evidence on October 25th, 2011 with respect to a statement that was given by the accused to the police.

The rest of the remaining time was taken by the hearing of evidence within that voir dire and on the last scheduled date of October 28th the case for the Crown was completed. At that time, there was an indication that the accused would be testifying in the voir dire and an additional day, a month later, November 29th, was scheduled for that purpose.

[53] In fact, on November 29th, the continuation of the trial continued within the voir dire with the accused taking the stand and itproceeded for all of that day in examination-in-chief. It became apparent that further days were required to complete the accused'stestimony, both in-chief and the cross-examination which had not yet commenced. [54] At that time, counsel advised the Court that the earliest days available for continuation to cover the balance of the defencecase and submissions was going to be in March of 2012, that is, March 5, 6 and 7.

Given that the accused was in the middle or almost atthe tail end of his direct examination and there was cross-examination to come, the Court took the position at that time that it wasunacceptable to delay the matter to March 5th for continuation. [55] On January 26th, the Court made itself available to hear the trial and at that time the evidence of the accused was continuedthrough to cross-examination, although it was not fully completed. Again, for the same reasons, it was not acceptable that cross-examination wait for a further several months for continuation.

A continuation date of February 1st was found and on that date thebalance of the cross-examination continued and submissions made. [56] I might add that those two days, January 26th and February 1st, were days not factored in for the continuation of the trialproper when the continuation date of March 5th was set and as indicated, yesterday, March 5th, was the start of the trial proper, at whichpoint in time I also delivered my decision on the voir dire and Mr. Cheevers raised the delay argument for the second time. [57] Mr.

Cheevers' position with respect to the delay is in essence that there has now been a period of some 30 months that hastranspired from the day the Information was sworn to today and the Crown's case is still not complete. He advises that the dates inMarch were the only dates available, not because of the unavailability of both counsel. He said both counsel had dates and were readyand prepared to proceed to trial at any time well before March of this year.

For that matter, he says that both counsel were ready andavailable to proceed to trial on any day prior to October 25th of last year and in fact were prepared to proceed as early as December of2010. [58] Mr. Cheevers says that the delay has caused real prejudice to his client.

He referred to the affidavit of his client that was filedin support of his application which lists the various ways in which his client has suffered as a result of the delay. [59] The Crown in essence has taken the position that much of this delay is as a result of the accused through his counsel notadvising of the various arguments he intended to raise at the time the trial dates were set so that those days were set withoutaccommodating the time that would be required to hear the evidence as well as arguments relating to the various issues that he hasraised.

As a result, as appropriate time was not set aside she argued it necessitated these delays that have occurred. She submitted it wasbecause of the accused's conduct and not anybody else's, although at the same time recognizing that there would be difficulty in ourCourt in obtaining five consecutive days for trial, that was the reason for the delays. [60] As I mentioned, with respect to November 29th, a continuation date was set for March 5th to the 7th for the hearing of thebalance of the trial.

January 26th and February 1st were really not factored into the calculation, but those are the days when the balanceof the voir dire and submissions were heard. [61] I accept that with respect to the continuation dates of March 5th through 7th which were obtained in November of last year,earlier dates were not available to counsel because of the unavailability of the Court due to other assignments and needs, and as well,because there were not the resources in place to allow for any movement of those assignments that would have opened up time to hearthe continuation of the trial much earlier. [62] By the same token, I also accept that with respect to the time period between December 2010 and October 2011, some tenmonths later, there was no time available within the Court structure and available judicial resources to accommodate five consecutivedays as was pointed out by the Crown and it was for that reason and that reason alone that October 25th and the days following were set.

It was not because counsel were not available but it was solely because the court time was not there and that court time was not therebecause of a lack of resources. [63] With respect to the basis upon which, in the first delay argument, I concluded that there was not an unreasonable delay, as Isaid it was based on matters prior to the hearing of any evidence. [64] With respect to the second argument raised by Mr. Cheevers yesterday, is the situation different and, under the circumstances,changed from when the first argument was raised?

It seems to me that if I conclude and find that there was not then really there is nodifference; however, if the situation is different from the basis upon which the first decision was made, it certainly opens upconsideration of whether or not there really was an unreasonable delay in the circumstances. [65] As I said, in deciding that issue not only do I consider these circumstances and the timeline that I have just referred to, but alsothe evidence that has been led since October 25th as that is now before me. [66] It seems to me that I can assess the situation and the unfolding of the trial within the timeline based on how the evidence wascalled and apply that to the various factors and the framework set out in Morin, supra, while at the same time considering thoseobservations that I have quoted from in the cases referred to by Judge Brecknell in Kaiser, supra.

In particular, I bear in mind thedecision of the Supreme Court of Canada in R. v.

Conway, (SCC), [1989] 1 S.C.R. 1659 with respect to the correctapproach to be taken in evaluating the reasonableness of the overall lapse of time wherein the court stated that a piecemeal analysis isgenerally not appropriate. [67] I am satisfied that when one considers the totality of the timeframe that has transpired from the start of the charge, that is, theday the information was sworn to today, some 30 months later, that that fits and falls within the purview of the first factor listed whichnecessitates a further enquiry as to the reasonableness of the delay. [68] With respect to the second factor, the waiver of timeframes, as I indicated in my first decision, in terms of the conduct of bothcounsel and in particular with respect to the accused where he opposed the first adjournment, clearly there has never been a clear and

unequivocal waiver of his rights to be tried within a reasonable time. [ 69 ] With respect to the inherent time requirements as a sub-heading for the reasons for delay, that is somewhat more difficult. It seems to me however that in hindsight looking at the evidence that has been led as well as the admissions made by the accused while also considering the so-called inherent time requirements such as intake requirements and the like including a consideration with respect to the complexity of the case, as was pointed out by Mr.

Cheevers, at the end of the day after all of the admissions were made as I have said, it is not really that complicated or complex. [ 70 ] In essence what we have are two suitcases that were identified by the Montreal Drug Squad as containing contraband.

They in turn then alerted the Port Moody Police who arranged for the pickup and monitoring of those packages; they took them to a special unit of the RCMP for analysis and examination; drugs were found inside the suitcases; a sample and an alarm mechanism were inserted inside; the suitcases were reintroduced into the postal system; an undercover police officer delivered them to the recipient (the accused) and he was followed to his residence and to the location ultimately where he was arrested. There was a statement provided by the accused after his arrest.

The analysis and the amount of what was seized from within the suitcases was admitted and thus when one looks at the overall picture with respect to this charge and what it entailed, as I have said, it is not as complex as initially thought to be. [ 71 ] Secondly, with respect to the reason for the adjournment of the first trial date, it was based on the fact that one of the officers, Constable Robert Anzulovich, was going to be hospitalized, for, if I recall a back surgery requiring some four months convalescence.

Again, in retrospect, looking at what his evidence was, could the trial have been dealt with much earlier and in a more efficient fashion? [ 72 ] I note from evidence heard at the commencement of the trial on October 25th that he was the first officer called and that much of his evidence, if not all of his evidence, dealt with the introduction of exhibits and what he did. But what he did was oftentimes in the presence of his brother, another Port Moody officer, and Staff Sergeant Arruda.

After all of the introductions of the various exhibits led by the Crown, there was very little cross-examination of him by the accused. [ 73 ] Having heard the evidence within the voir dire as to the various photographs and some of the exhibits, as not all of the exhibits were referred to in the voir dire which commenced immediately thereafter, it seems to me that the trial could have been easily accommodated much earlier than the October 2011 date that it was set for, and for that matter could have proceeded perhaps even on December 6th with slight adjustments to the trial itself. [ 74 ] It seems to me as well based on the fact that both counsel were ready to proceed in December of 2010 that the trial could have proceeded sometime in early to mid-2011 had that time been available.

I say that having now in hindsight or in retrospect considered what the case has been about in assessing the evidence after the fact so to speak, which was not before the Court to consider in the accused's first delay argument. On that basis it certainly seems to me it is very different and thus I find that there has been significant institutional delay looking at the picture overall, as was the approach to be taken again as referred to by the Supreme Court of Canada in Conway , supra . [ 75 ] The next factor to consider is whether or not there was prejudice to the accused.

I am satisfied that there has been a prolonged delay and I do infer that there has been a measure of prejudice to the accused because of that delay, but in addition to that has there been evidence of real prejudice to the accused that has affected him in a significant way? [ 76 ] I refer to the affidavit of the accused and I accept that he has incurred additional financial loss as a result of counsel fees and the like, and being away from his business for this period of time which is far longer than he had originally anticipated because of the various delays in the continuation dates that have occurred as the trial progressed from its commencement. [ 77 ] I also accept that while it perhaps may be considered that the situation is no different than any other accused in terms of the stress and the impact in terms of anxiety and tension that he has said he has gone through as a result of this outstanding matter, the fact that it has been prolonged now for some 30 months from the date of arrest is certainly a factor for consideration in concluding that there has been in fact a degree of prejudice suffered by him.

That includes as he deposes in his affidavit in para. 19, that he has some difficulty sleeping. [ 78 ] Another factor for consideration which is very real in this case is the effect the 30 month delay has had on his ability to recall the events in sufficient detail to enable him to exercise his other Charter right, the right to make full answer and defence.

He deposes that his memory has faded over time and that he is worried that he will not remember the incident as clearly as he otherwise would. [ 79 ] I think it appropriate for me to consider in this application (because it is not evidence within the trial) the comments I made in my decision on the voir dire when I say that his inability to recall and his worry is very real at this time because I made specific reference to his recall and lack thereof.

So it seems to me that there is a basis for that concern that is prejudicial to his interests. [ 80 ] There are other references to other matters but I am not so sure that they would have changed solely because of the length of the time.

One of those the accused refers to is difficulty in "keeping our marriage together" and the like. [ 81 ] In addition to that, there has been reference in Morin , supra , and the other cases with respect to restrictive bail conditions. [ 82 ] Crown's position is that these conditions are not so restrictive because the accused could have done any number of things to alleviate some of these restrictions.

However, the fact of the matter is the accused is under conditions of bail and has been under those conditions for bail since his date of release on September 9th, 2009, some two-and-a-half years ago. [ 83 ] The first condition of bail is that the recognizance required a posting by way of one or more sureties in an amount of $15,000. That is not a small or insignificant amount and for some two-and-a-half years, as a result, whoever it was who put up the surety for that amount has not had free use of that money.

In my view, that is a matter of some consideration. [ 84 ] Secondly, there is the condition that he is to surrender any passports he may possess and agree not to apply for any new passport while on bail, and thus he has been precluded from doing and exercising that ability for some two-and-a-half years.

[ 85 ] The fourth condition is somewhat restrictive, but not as restrictive as it otherwise is because it provides that he is to remain within this Province and cannot go outside British Columbia without the written permission of his bail supervisor. As was pointed out he was not free to leave this country because, notwithstanding that condition, he was required to surrender his passports. [ 86 ] There has been some limitation in his contact with his business partner, Mr.

Nazeri (phonetic), because it provides and allows for contact only for employment purposes. [ 87 ] While not unduly harsh, it seems to me that there are certainly restrictive conditions on his freedom that are set out in his bail which he has been on now as I said for some two-and-a-half years. [ 88 ] When I consider those various factors with respect to prejudice, I am satisfied that he has suffered real prejudice as a result of this lengthy delay. [ 89 ] As I have said, I have found that the circumstances in considering this argument at this time is very different from the circumstances considered with respect to the argument made at the start of the trial, before the hearing of any evidence. [ 90 ] Having considered the matter with those changed circumstances, the prejudice to the accused, and the delay which I have referred to as institutional delay, it seems to me that the matter has not proceeded within reasonable time as it otherwise could have been were it not for institutional delay. [ 91 ] While I am fully aware of the seriousness of this charge, and while I am fully aware of the interest of the community in prosecuting individuals to the fullest extent of the law in a court of law of those charged with serious offences such as this, and while I am now fully aware, having heard the evidence of the extensive time and expense that the authorities put into the investigation of this which is not insignificant, and in particular taking judicial notice of the fact that the Port Moody Police Department is a police department much smaller than the RCMP or for that matter the Vancouver Police and that the costs involved in this were great, in my view in the totality of the circumstances they do not outweigh the accused's constitutional right under the Charter to have this matter tried within a reasonable time. [ 92 ] I am fully aware in so deciding of the concern being raised by the public and by the government with respect to criticism of our courts lately but again those factors cannot and do not override the accused's Charter rights. [ 93 ] The Court must be free to impartially arrive at its decision based on matters placed before this Court, free from any outside influence, and in so deciding consider the various principles necessary as set out as I indicated at the start.

Those principles that are to be applied as set out in our Supreme Court of Canada's decision in R. v. Morin , supra , and the subsequent cases that followed.

I have applied those factors within the framework set out in Morin . [ 94 ] As a result of all of these considerations, and again I emphasize I have not taken this lightly, I have given this some considerable thought, I am loath to do it, but my views and my opinions quite frankly are irrelevant; it is the fair assessment of what is required impartially, and in taking that approach, I have concluded at this point in time, notwithstanding that much court time has already been utilized in the hearing of evidence that the accused's s. 11(

b) right to be tried within a reasonable time has been breached and that under s. 24(1) in the circumstances notwithstanding my great reluctance to do so that it is appropriate to entertain and consider a judicial stay of proceedings which I do. [ORAL REASONS FOR JUDGMENT CONCLUDED]